Defenders of the Constitution designed impeachment to be a rare event, especially by making the requirement for removal a two-thirds vote of the Senate for treason, bribery, or other high crimes or misdemeanors, rather than “maladministration,” in their words.
Join us as John Malcolm and John Yoo discuss the public hearings from the impeachment proceedings that began last month in the House of Representatives. How have the facts changed? What have been the procedures for the House investigation? Could the allegations plausibly meet the standards for high crimes and misdemeanors? How effective is the White House’s strategy of non-cooperation? We hope you join us as we address these questions and more.
John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Practice Groups, was recorded on Thursday, December 5, 2019 during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “The Trump Impeachment Effort” and is a part of an ongoing conversation series with John Malcolm and John Yoo. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are very fortunate to have with us, Professor John C. Yoo, who is Emmanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. As well with us is Mr. John G. Malcolm, who is Vice President at the Institute for Constitutional Government, Director of the Meese Center for Legal and Judicial Studies, and Senior Legal Fellow for The Heritage Foundation.
After our speakers give their remarks, we will have time for your questions, so please keep in mind what questions you have throughout this call and we'll be ready for you towards the end. Thank you very much for sharing with us today. Professor Yoo, I believe the floor is yours to begin.
Prof. John Yoo: Thank you Wesley. Thanks to The Federalist Society for having us back in this series on the, well I guess it started as a series on the Mueller Report and look where we are now. Back to the Mueller Report. And thanks to John Malcolm, joining the John and John show, as we're starting to call it.
We just rescheduled this a little while ago, but we had perfect timing, as always, because just this morning, the Speaker of the House, Nancy Pelosi, ordered the articles of impeachment to be drafted up by the House Judiciary Committee. We've just finished, last week and a half ago, the testimony in the House Intelligence Committee on the facts of the impeachment inquiry, and yesterday, I guess, was the first day of hearings by law professors and legal scholars about the constitutional standards governing impeachment and we're going to have more for the rest of the week. So we couldn't have had better timing.
I thought what we'd do in the presentation part of the conference call was to break it down into three questions: first the facts, then the process that the House is using and the Senate may use, and then the third, and last, question will be whether this meets the constitutional legal standard for impeachment.
So just my take on the facts, as I think we're done now with the fact finding. It looks like the House Judiciary Committee is going to just take, as accepted, the 300-page report from House Intelligence Committee Chairman Schiff; [they] might add some facts from the Mueller report, but doesn't seem to be that it's going to do anymore investigation of its own. So I think the universe of facts are closed.
I don't think that what we've seen has really moved the ball that much more forward than where we were before the House Intelligence Committee actually had its hearings. A lot of what we're still working with are the basic facts that are in the transcript of the phone call on July 25th between President Trump and the President of Ukraine, Zelensky.
In that call, we still see exactly what this is all about. President Trump talking to the President of Ukraine after that president had won a political victory and asking him to do him a favor. The first part of favor is a weird thing about CrowdStrike and Ukraine and being involved in the 2016 elections. But then, after a little while, turns to what's still the important question: did President Trump pressure Ukraine to get a personal benefit by asking Ukraine to open an investigation into the Bidens? And recall that Hunter Biden had been placed on the Board of the Burisma Natural Gas company, for which he was completely unqualified, for which he received a lot of money. And then, of course, Vice President Biden had, while serving as Vice President, pressured Ukraine into firing a prosecutor who might have been investigating that natural gas company. Asked him to do that favor, whether that was an effort by President Trump to get at corruption in Ukraine, or whether it was something that was of great personal benefit only to the President and his reelection campaign to dig up dirt against his most likely opponent.
I think most of the testimony that we've heard since then has really been to nail down another part of the story, which is, did President Trump, which he didn't mention in the phone call, but did President Trump around that time, and then a little later on, delay $400 million in foreign and military aid to Ukraine until the investigation was announced by Ukraine?
I think we saw two weeks of testimony by various civil servants, a few political appointees, ambassadors, and so on, all trying to really get at this question about whether it was a quid pro quo. Was it extortionary, extortious? Did President Trump really hold this foreign aid in advance as a way to pressure Ukraine into doing something that was a personal benefit for him?
I don't really think the facts have substantially changed that much after all of these hearings. My basic view is, I'm willing to concede or accept that something like that happened. That President Trump did make this request. He didn't ask, in the phone call, for any kind of quid pro quo. He never threatens to withhold aid. But I think what the hearings show, and I don't think it's difficult to see this, that there were a variety of efforts to communicate to the Ukrainians in various ways, through Rudy Giuliani, or through Ambassador Sondland, and so on, through various figures in the Ukrainian government of various level of seniority, that this military aid and foreign aid was being held up.
Now, in the end, the military aid was released. Actually, Ukraine is now receiving far more effective aid than it received under the Obama administration. It's now receiving lethal aid, whereas the Obama administration refused to provide lethal aid. And no investigation was ever started by Ukraine. So I just think that's what we know now.
In the end, I don't think that's going to change anybody's mind, and I think the polls reflect that. We don't really see any movement. The country seems about evenly divided between impeachment or not. John, what do you think?
John Malcolm: Well I agree with, pretty much, everything you just said, John. The biggest thing I absolutely agree with is, I don’t think that any of this, not only yesterday's hearing but all of the proceedings at two weeks of hearings before the House Intelligence Committee, I don't think that is has changed anybody's opinion one way or the other. If you believe that President Trump tried to involve Ukraine in the 2020 election, and withheld aid for a, quote/unquote, "personal benefit," to dig up dirt on Joe Biden and used a ruse to get it, then you still believe that, and your views have been strengthened.
If, on the other hand, you believe that the President, unlike the career officials, all of whom testified, he gets to set foreign policy, that he had a more jaundiced view of the Ukrainians commitment to anti-corruption efforts, and whether he had a more jaundiced view about their attempts to defeat him in the 2016 election and that he was entitled to express that skepticism and to look for them to demonstrate a willingness to come clean and turn over a new leaf, and that eventually the aid was released and there was no quid pro quo, nor did he ask for a quid pro quo. If that's what you believe, then your beliefs have been strengthened.
I think that there are very, very few people who don't have an opinion on this issue. And those people that don't have an opinion on this issue are busy watching Maury and Jerry Springer and not paying attention to any of this, at all.
With respect to the facts, I agree with just about everything that you said. They are, now, bringing back -- Michael Gerhart, a University of North Carolina Professor, brought back the Mueller Report, specifically part 2 of the Mueller Report, which dealt with alleged obstruction of justice. And there will be articles of impeachment related to that. For all I know, they may draft something on volume 1 of the Mueller Report, an alleged act of collusion between Donald Trump and the Trump Campaign and the Russians. I think, as you also pointed out, their theory of perfidy warranting impeachment and removal has been shifting over time. It was collusion and obstruction. And then it became quid pro quo and bribery. And then it was moved into abuse of power, and it's moved around, it's shifted. That's okay. They're allowed to fish around and ask questions about all of this, but it makes it a little bit difficult to know what they're going to, ultimately, settle on.
With respect to the facts, I think it is very, very clear that the career diplomats in the State Department all believe President Zelensky and his anti-corruption attitudes, and they thought that this was insane to delay withholding these funds. I'm not going to denigrate to any of them, but that's all well and good. But, of course, their purpose is not to set foreign policy, it is to advise the President who gets to set foreign policy. The President is entitled to believe what it is that he wants to believe, if there is any kind of a good-faith basis to support those beliefs, and in this case, I think there was.
So the three things that he talked about on the call, and at other times, is that, one, the United States provides too much foreign aid to other countries and that there are other countries in Europe who ought to contribute more to helping the Ukrainians in their fight against the Russians on the Crimea. He said that on the call. He has said that with respect to foreign aid for all kinds of countries. It's been a common theme of his since he was elected.
The other two things that he talked about were Ukrainian interference into the 2016 election, and there is some evidence to support that, too. So he talked about CrowdStrike, and he has this theory, that it was the Ukrainians that hacked into the DNC server, and not the Russians. I think there is very, very scant evidence, really no evidence to support that, other than the fact that I would note that the DNC servers were never seized by the FBI. They were never examined by the FBI and no one seems to know where those servers are, which is, of course, a very, very curious thing.
But even if you totally set aside the hacking incident, there is plenty of evidence to suggest that the Ukrainians were, in a less pervasive and effective way than the Russians, trying to interfere in the 2016 election. And unlike the Russians, they were trying to help Hillary Clinton. And as evidence for that, I would point out, one, that in 2018, a Ukrainian court said that a Ukrainian politician, and also the head of Ukraine's anti-corruption unit, that they illegally leaked the black ledgers. The black ledgers were the off-book payments between a pro-Russian Ukrainian party to Paul Manafort. They illegally leaked those ledgers in order to help Hillary Clinton.
There's other evidence, the Ukrainian ambassador to the United States wrote an article during the campaign in The Hill magazine severely criticizing Donald Trump. The Minister of Internal Affairs sent out a tweet during the campaign saying that Trump was a clown and a dangerous misfit, and an even bigger danger to the United States than terrorism. The Former Prime Minister of the Ukraine sent out a statement saying that Donald Trump challenged the very values of the free world. There was a Ukrainian-American who was hired by the DNC named Alexandra Chalupa, who was running around Ukraine gathering up dirt on Donald Trump and Paul Manafort.
None of this was, particularly, a secret. Right after President Trump was elected, before he was inaugurated, Politico Magazine published an article entitled "Ukrainian efforts to sabotage Trump backfire: Kiev officials are scrambling to make amends with President-elect after quietly working to boost Clinton." So he had reasons to be skeptical about the Ukrainian's purity when it came to the 2016 election.
And with respect to Burisma and the Bidens, there is evidence there, too, to suggest that Joe Biden engaged in a corrupt endeavor with the Ukrainian government in order to benefit his son, Hunter. Now, he contests all of that, but there is evidence to suggest that this may be so.
Here's what it is, in a nutshell. So in April of 2014, British authorities froze bank accounts totaling $23 million of the Founder and Owner of Burisma, a guy named Mykola Zlochevsky. The very next month, about three weeks later, Hunter Biden, whom, as you said, has no experience in the energy field, is appointed to the Burisma Board. It's not just Hunter Biden, by the way. A business partner of his, named Devon Archer, is also appointed to the Burisma Board. Those two have a third business partner who just happens to be the stepson of, then, Secretary of State, John Kerry. So right after Zlochevsky's accounts are raided, Biden and Devon Archer, with no experience in the energy field, are appointed the board, they are paid millions of dollars.
In December 2015, the New York Times publishes an article saying Viktor Shokin, the Prosecutor General, the equivalent of their Attorney General, is investigating Burisma. On February 2nd, Zlochevsky's home is raided and all of his assets and evidence is seized. In the immediate aftermath of that raid, there was a series of calls between Joe Biden and Ukrainian President Petro Poroshenko. Burisma's lobbyist in America seeks a high-level meeting at the State Department and invokes Hunter Biden's name to get that meeting. Devon Archer has a face-to-face meeting with John Kerry. And right after that, Assistant Secretary Victoria Nuland comes out with a statement demanding that Viktor Shokin, the lead prosecutor, be fired. A week later, Biden has his call with President Poroshenko and says that he will not release $1 billion in previously approved loan guarantees unless Shokin is fired. And guess what? Shokin is fired and the funds are released. And Shokin has issued a statement saying, "I was fired because the Bidens wanted to shut down that investigation on Burisma."
Now, all of that may end up, at the end of the day, being bunk, just as all of these career prosecutors said. But it is certainly very colorable and would lead a reasonable person to say, "Hmm, this is worth looking into." At the end of the day, as you say, the funds were released. Not only the $391 million in aid, but an additional $39 million sale of Javelin anti-tank missiles. Adam Schiff is running around saying, "But of course the only reason that that aid was released was because of the whistleblower complaint." There are other reasons to believe that the aid was released, too.
Vice President Pence had just met with President Zelensky and came back and told Trump how impressed he was with him. There was a bipartisan group of Senators, Ron Johnson of Wisconsin, and Chris Murphy of Connecticut, who also had just met with Zelensky in Ukraine and came back and said how Congress totally supported President Zelensky and what they were trying to do. The funds were released. In other words, the facts are as clear as mud. And the Democrats are prepared to just assume the worst, and that's why we are where we are.
Prof. John Yoo: This is why John worked in the criminal division and I worked in LLC. He loves the facts; he loves the facts. I hate facts. I believe we've turned to the second issue, and in the Q&A, we'll talk more about the facts.
I do agree with John. I accept that the quid pro quo happened, but I think it's very difficult to tell. And I agree with your bottom-line views that it's very hard to tell. A lot of it has to do, to me, with the state of mind that President Trump had when he said those things in the phone-call, and you can definitely read it two ways. And it seems, I agree John, it really seems difficult to have impeachment go forward, actually let me say, removal of the President go forward. Of course, impeachment is just when the House votes to send it to the Senate for trial. Whether removal is justified on facts like these, but that we'll get to at the end.
So second point, maybe just quickly, is the process. This is where I have quite a lot of disagreement with the way the impeachment has gone forward so far in the House. I think, one, the thing that bothers me the most -- and I think Jonathan Turley mentioned this in his testimony, yesterday, to the House Judiciary Committee. Jonathan was the Republican witness, and then you had three Democrat witnesses: Pam Carlin, Mike Gerhardt, and Noah Feldman.
The speed of the investigation bothers me. If you look at when the complaint about the whistleblower first started to get kicked around in the media, you're talking, I think, around the end of August, early September. Impeachment proceedings start in the middle of September. And basically, the investigation is over by the end of October, early November. You're talking about two months. That troubles me.
I think it's quite different than earlier impeachments, particularly the Clinton impeachment. Because in the Clinton impeachment, Ken Starr's independent counsel investigation had done all the fact finding. Here, there's been no prosecutors, no one else. Congress hasn't delegated, as it has in the past, the job to do the fact finding. Two months just seems like not even, not close to enough time. And you can also see that in the big holes, that have a lot of things that John's bothered with, John Malcolm, my friend, is bothered with the facts and things that troubled me could be cleared up, I think, quite easily if an investigation was done thoroughly. And by thoroughly, I mean calling, actually, the witnesses that matter the most. That would be the Chief of Staff, Mick Mulvaney, Vice President Pence, National Security Advisor John Bolton, Secretary of State Mike Pompeo.
I don't see how you can really be confident that you've found out the facts on whether an impeachable offense occurred without hearing from them. Now, of course, several of them are fighting or refusing to obey subpoenas. This has happened before. Any of us who've worked in government have seen this happen before on oversight hearings. It always gets worked out in the end.
Here, what bothers me is that the House didn't really even try and didn't even wait to work out an agreement to allow these most important people to testify. It seems to me, if you're going to go forward with the gravest constitutional responsibility that the House has under the Constitution, you have a duty and an obligation to try to hear from all of those people so that you're confident you've really canvased all the events of witnesses to get the facts down. I fear that the House, by rushing the process, has actually doomed their effort in the Senate because I full expect the Senate, given the weird rules that it has . . .
The Senate doesn't really have a trial. In the past, the Senate has basically just heard oral argument. They don't see witnesses in person. They don't see evidence. They don't touch anything. They don't question anybody. Really, the trial, to me, takes place in the House, in terms of getting all the facts out. And the House, I think, by doing it in this truncated fashion has doomed its case in the Senate.
And so it goes back to what John and I started with before, nothing here changed anything. You might get maybe two or three Senators from the Republican Party might switch to convict, but I think on these facts with this kind of evidence, why that'd even get into the constitutional standards issue here, which are important. The House has doomed itself to lose. John?
John Malcolm: Yeah, I agree with everything you just said. I don't think that, even if these other witnesses did come forward, that that would likely change anything. If you look at the President's approval rating, they really haven't budged. He has a core level of support that is really, really firm and anybody who would vote to convict him might have a hard time.
There are 45 Democrats in the Senate, two Independents, Angus King and Bernie Sanders, so you assume that they vote with them. That gets you to 47 Senators. Assuming they all stick together, Manchin, Doug Jones, or whatever, don't cross over, you'd need at least 20 Republican Senators to cross over to remove him and hit that magic number of 67. And I just don't -- I didn't see it and I don't see it.
But look, I agree with you. There are a lot of fact witnesses, if you really wanted to do a thorough job, who have not appeared yet. And I think that, eventually, the Democrats might get, if they were more patient, get that testimony. I mean, there's already been a lower court, district court order saying that the former White House counsel, Don McGahn, has to testify. The arguments are very much the same, I think, with respect to Bolton and Mulvaney and Pompeo.
So I think that if the Democrats stuck with this and let the process play out, they would probably win in court. But they have the difficult problem of they are running into 2020 and, at the moment at least, so far as I can tell, nobody is paying any attention to any of the people on the Democratic side who are running for the nomination. So the clock is their enemy. The Iowa Caucus is, there is January or the first week in February. And then there's the New Hampshire Primary and then there's Super Tuesday and they're all off to the races.
You've got all of these people out there trying to get some attention, and nobody's paying any attention to them because they're all busy paying attention to impeachment. I understand the plight that the Democrats are facing, but if they wanted to do a thorough job and actually persuade anybody who was persuadable, who didn't already have an opinion one way or the other. I certainly think, as Jonathan Turley said yesterday, and as John Yoo just said today, they are short circuiting the process.
But have no fear, a lot of these Democrats are unhinged, and if you think that this impeachment process isn't going to end so well, perhaps you might be interested in what Neal Katyl, the former Acting Solicitor General tweeted out today, in which he tweeted the following, "Important note on future, if the Senate doesn’t vote to convict Trump, or tries to monkey with his trial, he could, of course, be retried in the new Senate, should he win reelection. Double jeopardy protections do not apply and Senators voting on impeachment in the next few months know this. So perhaps if they rush the process this time around, they'll get it right the next time around.” Back to you, John.
Prof. John Yoo: I didn't know Neal had said that. That would just be so much fun. I think Neal's just out to create a law commentator's full employment act. Trump President is a great gift for those of us who like to observe and discuss constitutional law and politics.
So let's start with the very last issue before we open up to the floor, which is what yesterday's hearings were about, and I think the looming question over all of this is: this taking even the Democrats claims about the facts to be true, is this impeachable conduct and should the Senate remove? And this is one of the murkiest phrases in the Constitution. What is the meaning of -- now we know what treason and bribery is, but what are other high crimes and misdemeanors, which is the standard for impeachment? And as John said, the Senate, under the Constitution, has to convict by two-thirds.
The Framers, if you look at the history, intentionally put that standard in there, above other high crimes and misdemeanors, and two-thirds, because they wanted to prevent impeachment from being used as, unfortunately what appears to being used now, a partisan tool by a party in Congress that dislikes and wants to remove a President. They were very worried about the idea of our system devolving into some kind of parliamentary system, where the President really just became a Prime Minister for the majority party in Congress. They wanted the President to be independent and vigorous and not subject to recall or control by Congress through this threat of impeachment. So they wanted to make sure that if we really were going to remove a President in a method other than elections, that it represent a very high consensus amongst the population. And it appears, I think as John rightly showed, that doesn't have that kind of support right now.
I actually think, and this is where John and I are finally going to disagree. I actually think that this is impeachable conduct, this kind of activity, this kind of charge against President Trump. But I don't think the facts are serious enough to meet the level you would want for removal. So I think if you look at the evidence -- and actually, I'm quite surprised at the people the Democrats asked to testify. Mike Gerhardt has written a book about impeachment. I mean, he has written the book on impeachment. Pam Carlin and Noah Feldman, although they're important constitutional scholars, they're not scholars of impeachment. I think the written testimony was kind of disappointing, in that regard. In the quotes and soundbites you got from the hearing, itself, didn't really, I think, lay out the best case for the Democrats, actually.
I'm really quite persuaded by the historical evidence. If you look at the historical evidence, there is several examples where the Framers said, "other high crimes and misdemeanors have to include, not just things that are crimes, but serious abuses of power." And they actually quite clearly say, "impeachment does not mean all crimes." So all crimes are not impeachable offenses. But there're also things that aren't crimes that could be impeachable offenses. And they gave interesting examples that involve a foreign affairs power. One was the King of France, Louis XIV, basically paying the King of England, Charles II an amount of money every year. And in exchange, the King of England decided not to get involved in any of the continental wars that Louis XIV was engaged in.
And then a second one that I sort of discuss -- I’m finishing this book on Trump and the Constitution, and I found this nugget. I guess I should write it up, at some point. They talked about treaties that a President could sign or engage in that would advance his interests, his state's interests, even his political party's interest, but sacrificed the national interest. Not even a crime, but again, the Framers said, this is also an example of something that could be a high crime and misdemeanor. So my point is just that, the Founders believed that a President could abuse his foreign affairs power in a way to benefit himself, or his political party, or even his own state, such that it would be an impeachable offense, even though it wasn't treason or bribery.
Now, the problem is, to me, and this where I think what John's saying, what I'm saying about the facts and the process make a difference, is I don't see that the facts here are serious enough. They don't rise the level of France bribing the King of England. They don't rise, yet, to the level of a President signing a treaty that sacrifices the national interests. Consequences do matter, not just the intent, but I think the actual effects in the real world of what the President was trying to do matter in this scale. Because a serious abuse of power has to actually be serious. I don't think the Framers thought you would impeach someone for every abuse of something. Otherwise, we could have impeached a great many other Presidents, I think.
It was Congressman Ken Buck, I think, went through very effectively, all these things that say, John F Kennedy, FDR, and LBJ had done, like wiretap their political opponents, and use the IRS to audit their enemies. That would have been maybe even worse than what Trump has done, but no one thought about impeaching them for.
In the Senate of the United States, then I expect when you, if these things don't rise to the level, the facts here don't rise to the level of impeachable offense, what's the remedy? And I think that's where we really get down to what the Framers really thought would be the control on any kind of presidential abuse of power, which would be elections. And it seems to me unfathomable as a matter of constitutional structure that you would try to impeach or remove the President for these kinds of facts in the same year as an election year.
If the House, I think, had been smarter about it, President Trump's [inaudible 00:29:56], they would have conducted oversight, actually, it's a weird thing. I think Nancy Pelosi was originally right, just having oversight hearings, put all this evidence out for the American people to see, and as the Framers intended it, let the American people render the verdict on President Trump in November. I think that's the most effective remedy for presidential abuses of power. John?
John Malcolm: So I hate to disappoint you, John, but I actually agree with you about the standards of impeachment. The only person I hear running around and saying that it has to be a criminal offense is Alan Dershowitz. But Jonathan Turley, I think, pointed out correctly that the only two really serious -- I mean, the first impeachment effort against Andrew Johnson was very serious. He barely survived, but he was saved by Republicans who detested the man because, at the end of the day, they thought that this was political, and certainly not criminal or even a gross abuse of power. But in the cases of Nixon and Clinton, we were talking about clearly criminal conduct. Alexander Hamilton, in Federalist 65, wrote that the subject of "its jurisdiction," its being impeachment trials, "are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse of violation from some public trust. They are of a nature which may be with peculiar propriety to be denominated political, as they relate chiefly to injuries done immediately to the society itself."
So I agree with you that if this was -- if you accepted the Democrats speculation as fact, that not providing this aid was clearly against the best interest of the United States and that the sole reason why Donald Trump was insisting in a quid pro quo, "you will get this aid but only if you dig up dirt on my rival," and that's what was motivating him, that could rise to the level of being an impeachable offense. I didn't really hear anybody, yesterday, disagreeing about what the standards are for impeachment. There was a radical disagreement that continues to be about the factual basis for the formulation of these impeachable offenses and I don't see that going away.
I guess before we turn it over to questions, the one thing I would say is, he will be impeached. It will be almost exclusively, if not exclusively, on party lines and maybe, as John said, two or three Senators, so maybe Collins, Murkowski, maybe Romney, cross over and vote to remove. But that'll be it. And in 1998, when we were talking about the Clinton impeachment, the very same Jerry Nadler, yesterday, who was suggesting that the President should be drawn and quartered, said that there must never be a narrowly voted impeachment. When impeachment is supported by one of our major political parties and opposed by the other, such an impeachment will produce divisiveness and bitterness in our politics for years to come and will call into question the very legitimacy of our political institutions. I think that's what Professor Turley was saying yesterday, and I think he's right.
Wesley Hodges: Here is our first caller of the day.
Michael Rossman [sp]: Hi, it's Michael Rossman calling. I have a question for John Malcolm. I apologize I came a couple of minutes late, but I don't think anyone discussed this. The Democrats have been speaking about bribery as a potential impeachment article, and I'd just like, if you could, to explain what the theory is and your opinion about it. Because it would seem to me that our foreign policy is almost constantly giving money, or providing money, or offering money to foreign countries in exchange for them doing things. I don't fully understand the theory behind how it could be a criminal case of bribery. I'd like you, if you could, to explain it and give us your opinion about it.
John Malcolm: Sure Michael, and thanks for calling in. The theory is simple, which is to say, gee, we'd really like you -- use the President's phrase, "President Zelensky, I want you to do me a favor. I want you to dig up dirt on the Bidens, and here's what I'm going to give you to do it, specifically, $391 million in military aid and with the promise of we'll help you in other ways, too." You could flip that around, as the Democrats have also tried to do, and say it's extortion. Saying, well this was previously approved funds, so you ought to get it, but we're not going to give it to you unless you give us this dirt. That's the way you would spin that.
You are, of course, very correct, that presidents have used foreign aid as leverage in lots of ways. Barack Obama threatened to withhold hundreds of millions of dollars in aid to Egypt, and in a conversation with President el-Sisi, said, "We're not going to give you this aid until you do more to cooperate with our counter-terrorism efforts and you got to also tamp down, crack down on the Muslim Brotherhood." Obama also threatened to do the same with African nations unless they adopted more gay-friendly policies. The biggest example of an explicit quid pro quo would be Joe Biden saying, "Well, yeah, we have $1 billion in previously approved loan guarantees, but you're not getting it until you fire your Attorney General," and he got what he wanted. That's why they're saying what they're saying. But you're pointing out that we have used foreign aid as leverage to try and get other governments to do things that we think are in the best interest of the United States, which by the way, sometimes politically benefits the President and who happens to be in office. That's as old as our country.
Prof. John Yoo: Great question. I think there's two additional points I'd like to, or maybe go further than John Malcolm, here. One is, we bribe people all the time. What do you think the CIA does? CIA bribes people who are foreign -- with cash who are foreign government officials to get them to do stuff that we want them to do. I don't think anyone would think that we would apply the bribery statute to government agents who are bribing people. What we worry about is the President and our officials being bribed to do things for other countries. I don't think there's anything wrong with us bribing everybody else. And just to make it clear, this is something, of course, the Founders would have known about.
At the time of the Constitution, we were paying millions of dollars in tribute to the Barbary pirates, remember these guys, the Barbary pirates so that American ships wouldn't be attacked, and American sailors wouldn't be taken hostage in the Mediterranean. This went on from the Continental Congress through to Thomas Jefferson's presidency. So I can't imagine that the Founders would have thought some kind of exchange for money with some foreign benefit is actually an outright, per se violation of the bribery clause impeachment.
The second thing is, and this is, I think, another mistake the House Democrats are making, is they keep referring to the federal bribery statute. The federal bribery statute is far more detailed than bribery in the Constitution. The federal bribery statute was passed, I think, in the 20th century. There's no federal bribery statute on the books, of course, at the time of the Constitution or for 100 years after the Constitution. So this effort to try to make it this very fine-tuned, honest services claim, that “oh, if you do something and you're withholding a benefit, you're getting a benefit under the bribery statute,” that doesn't matter. What matters is, is it bribery within the Constitution? And actually, this is a Marbury v. Madison kind of question. Congress can't change the meaning of the bribery offense in the Impeachment Clause merely by passing a statute which it thinks is bribery. That's, basically Marbury says, you can't use -- Congress can't use statutes to change or expand the meaning of words in the Constitution. I think Democrats are, actually, quite off on using bribery. In the end, they have to go back to high crimes and misdemeanors.
John Malcolm: Yeah, I agree with that. The only thing I would add is, if you want to think of an example of foreign funds being used as bribery, just think about pallets of billions of dollars of unmarked bills being delivered to Iran for the Iran Nuclear Deal.
Wesley Hodges: Caller, you are up.
Warren Belmar: Hi. This is Warren Belmar calling. Two points. One, I'm afraid that what's happened here is that we've turned impeachment into a partisan political weapon, especially if people are saying that if we control the House and the President gets reelected, we'll consider impeachment all over again. But more importantly, you've noted that the Constitutional Convention, originally, had the word maladministration as the part of the standard. And that was dropped in favor of treason, bribery, or other high crimes and misdemeanors. What no one seems to focus on is what the Founding Fathers thought was adequate for removal of a member of Congress. And for a House or Senate decision was standard in the Constitution in Article I is disorderly behavior. I think what we're seeing here is the House Democratic leadership converting the standard for the President into the standard for itself, a standard which is very rarely ever applied in either the House or the Senate.
John Malcolm: You are right that, originally, what was proposed by George Mason was to include -- it said, "treason, bribery, and maladministration," and due to James Madison, and others, maladministration was removed for precisely the reasons you might think, which is they thought it was too loose a standard and that the President would then be under the thumb always of the Senate and they replaced it with other high crimes and misdemeanors.
Yeah, look the Senate, you're right. It's interesting to note that the first person in this country who was actually impeached was a United States Senator. He never went to trial because the Senate decided that rather than have an impeachment trial, that he wasn't an appointed official, probably didn't fit within the definition of people who are subject to impeachment, but that either way, they would choose to use the Senate's own rules to expel him, which they did. So yeah, they have their own standards and perhaps they are being somewhat hypocritical.
Prof. John Yoo: I think, Warren, you actually have a better example at hand even than the standard for removing a Senator, which is impeachment of judges. Impeachment of judges requires that they not have acted in good behavior. Actually, I think, I don't think people have argued this in the hearings, but it seems clear to me that the standard for impeaching judges is actually lower than the standard for impeaching a President. However, if you look at the books and reports that are done on impeachment -- because there've only been two presidential impeachments: Johnson and Clinton. So really, there's no precedent or case law to go on.
So people who are in favor of impeaching President Trump, they try to draw a lot of analogies to what the Senate and the House have done with judicial impeachments. For example, you might see one argument out there that President Trump could be impeached for things he did before he was even President, which I think is completely mistaken. But that's because there was a federal judge who was impeached before he became a federal judge for taking bribes, as a state judge. Whether that's impeachable or not for a judge, the standard is just completely different. Good behavior is just a different standard than, I think as you suggest, a higher standard that's there for presidents.
Let me give another point about maladministration and John Malcolm is quite right, and you are quite right, Warren, that the standard was deliberately changed for “treason, bribery, and maladministration” to “treason, bribery, and other high crimes and misdemeanors” and there's a lot of debate in the scholarship about, what did they understand that to mean? As John's right, maladministration clearly suggested removal over policy differences and they didn't want that to happen. So we know the floor, but we don't know -- I mean we know what it's intended to exclude, but we don't know what it's intended to include.
So I think the best thing here is, let's be good textualists. Treason, bribery, and other high crimes and misdemeanors. Other high crimes and misdemeanors, you take the standard cannon of construction, you would think has to be on a similar level of seriousness with treason and bribery. And so that's why I think other high crimes and misdemeanors can't just be any time the President does something wrong. It can't be anytime the President does something unconstitutional. It has to be times where the act, no matter what it is, is serious enough to justify removal that would be on the same plane as treason and bribery.
One last point, I think you're completely right that this has become a partisan affair. And John's quite right when he said, a lot of Democrats, during the Clinton impeachment, were saying things like, “You shouldn't have close votes; it shouldn't be partisan affair.” You totally saw that in the way the hearings were run. I think another thing the House Democrats did very poorly was, really, excluding a role for House Republicans in the management of the impeachment inquiry in the first place, even to the point, yesterday where, rather than picking professors to testify who might have been more impartial, or even testifying against the interests of their own political party, you saw a lineup of people who had, several times, already called for the President's impeachment, even before the Ukraine issue came up, but were Democrats. So it was just more like a regular hearing in the House, where each side brought up it's own partisan witnesses, rather than trying to reach for some broader consensus. And I think that's, unfortunately, infected the whole impeachment inquiry to date. And I fully expect, as John said, there will be an impeachment vote that will be down the party line and I expect you'd see a similar vote at the Senate trial, too.
Warren Belmar: I'm going to disagree with you on that. I think that the members of the House and the members of the Senate are facing a Profile in Courage moment where they're being called upon to make a principled decision that will affect our politics going forward for years to come. And if this is sanctioned by the House as a partisan weapon today, it is going to be a partisan weapon for a long time and that is not what the Founding Fathers intended impeachment to be.
John Malcolm: Well, I agree with the second part of what it is you said, but not the first part of what you said. As somebody who's here in Washington, I can tell you, even at the time when John Kennedy wrote Profile in Courage, it was a thin book. And the other thing that I would point out [CROSSTALK] --
Prof. John Yoo: Actually, Theodore Sorensen wrote the book.
John Malcolm: Fair enough. Ghost written, another Profile in Courage. So John raises the interesting point about a different standard for judges because they serve in good behavior. I've got to think about that. In fact, two judges who were impeached, John pointed to one. There was another who was impeached for lying on his FBI background form before he became a judge, so that was clearly conduct before he became sworn in as a judge. And another was also impeached and removed for public drunkenness, so there may be something to that.
The only thing I would disagree, slightly, with John is that I think there was -- the Republicans were a little bit canny in picking Jonathan Turley, not only because he has testified before an impeachment proceedings and represented Judge Porteous during his impeachment proceeding, but he made it quite clear that he didn't vote for the President and doesn't like a lot of what the President does. So to some extent, it gave it a little more heft, I think, by saying, "Well, look, this guy clearly doesn't like the President. He didn't vote for him. Is not going to vote for him next time, either. But even he is saying he shouldn't be impeached and removed based on this evidence."
Wesley Hodges: Very good. Thank you so much, Warren. Next caller, you are up.
Tim Harker: Yes, my name is Tim Harker. I'm in Potomac, Maryland. In trying to figure out what impeachment is by defining what it couldn't be, I'm curious as to your thoughts about an effort to criminalize or politicize -- whether to criminalize politics -- the Supreme Court in the McConnell case, which is the Governor McConnell case --
John Malcolm: McDonald, yes.
Tim Harker: McDonald, yeah, about the corruption in politics and the relationship between the two and the Court drew a pretty sharp line there. I'm curious about, whether what the Democrats are up to doesn't really criminalize politics in the sense of just basic log rolling. How is this different from log rolling, which congressmen do every day?
Prof. John Yoo: I do take the point that there is a kind of, I wouldn't say criminalization, but the use of impeachment to fight out policy differences. And I think there's two actual fights going on here, one we talk about a lot and one we don't talk about that much. So the one that we haven't talked that much about is actually the fight between the elected President and the career civil service.
So sometimes in the media, you hear Republican Party members calling it the "deep state." I wouldn’t go that far. Deep state is more like a phrase that's used to discuss authoritarian governments and the military intelligence services. I don’t think that things with our civil service are quite like that.
But I think one thing you're really seeing here is a sort of a rebellion by these career civil servants in the State Department, National Security Council, who just did not like the President's approach to Ukraine. They also didn't like the way the President was conducting foreign policy by using private officials like Rudy -- private people, like Rudy Giuliani to conduct the policy for the President, and they didn't like President Trump. They're all entitled to have those views. But choosing not to use this much appraised thing called the interagency process and consensus doesn't bind the President. These people are supposed to work for the President. The President doesn't work for them. And you saw, I think, in the hearings this fight, not just between political opponents, but between this career civil servants that wants to control foreign policy, and a President who was politically elected and doesn't feel bound by those conventions. So I think that's one kind of fight.
And then the other fight, I think you're referring to, is of course more partisan fight between Republicans and Democrats. Now, it's not really a policy fight about Ukraine, in this sense. It's just like, when I think of the Democratic Party, I don’t think of them having any particularly strong views on Ukraine and actually, I think, there's a lot of -- one thing this is showing me is, there's a lot of disagreement and debate in our country about the right approach to Ukraine. But I do think that this is just the pretext. I think Ukraine is more of the pretext for the larger part of some fight between the Democratic Party, particularly the base of it, and these presidential candidates all demanding impeachment, which Nancy Pelosi had initially wanted to resist, because I think she was right. I think she saw this could be a political disaster for the Democratic Party. And a President, who they just refuse to accept as legitimate, and have refused to accept it for, pretty much, the entire time of his Presidency.
John Malcolm: So let me make three quick points. So Tim, I think your point about, that this could represent the weaponization of the impeachment process is correct. McDonald is slightly different. It's an important point, in that the Supreme Court unanimously, in McDonald, tried to delineate what would clearly be corruption from what would be log rolling, and everyday politics. And so that was important, but of course, that was a criminal case for somebody who's going to be a convicted felon and incarcerated. And the impeachment process is not criminal. But your point about the need for clarity, at least in terms of the facts, if not the standards you use, to discern between really abusive, if not outright criminal behavior and standard leverage and log rolling is a good one.
With respect to the point about the deep state, I agree with what John said, but I find one thing, at least curious. Not only were these career politicians dead set against the President and hated what he was doing with Ukraine, but people are all talking about the whistleblower, who the whistleblower is, should the whistleblower testify, and I am less insistent that the whistleblower testify. I would just accept, as a given, that the whistleblower is a partisan, and that the whistleblower had no first-hand knowledge. But what I consider significant is that all of these career people ran to somebody who is clearly a partisan, who was one of their peers, and he went and hired an attorney who, literally, 10 days after Trump was sworn into office, said a coup had begun and it was time for the lawyers to go in to effectuate this coup.
And then the last point I would make with respect to drawing other countries into our politics. The Democrats are, again, speaking a little bit out of both sides of their mouths, and then in May of 2018, three Democratic Senators, Menendez, Durbin, and Leahy, wrote a letter to the Prosecutor General in Ukraine saying, "Gee, we may not give you aid in the future and you may ruin your bipartisan reputation, unless you continue cooperating with the Mueller probe." Democrats have had no trouble, on occasion, holding out aid as both a carrot and a stick in order to involve those countries in, what some might perceive as being, partisan politics, as well.
Wesley Hodges: Let's go to our next question
Caller 4: You guys both mentioned the phrase, "I think Nancy Pelosi was right." I'm just curious if that's a phrase that commonly rolls of your tongues.
My actual question is, I confess to a bit of confusion about why it seems the "quid pro quo" aspect is so significant? Because to my mind, foreign affairs is generally conducted with a wink and a nod. And so there's always a quid pro quo. It seems like the real question underlying is, was it a legitimate request? Sure, the investigation of Biden's son would have helped Trump, but is there a legitimate basis for it, as well as a personal basis? So I don't know if you guys can expand on the quid pro quo, that would be useful for me.
John Malcolm: I agree with everything you just said. The only complicating factor is that we have an impoundment act that says, once Congress approves it, it takes away some of the leverage that the President actually has. Because if you pass the end of the fiscal year and those funds haven't been dispersed, arguably, the President has violated the law. That didn't happen, here.
But look, if Joe Biden can say, “You're not going to get $1 billion in previously approved loan guarantees unless you fire this prosecutor,” and his stated reason, or what he's saying now, the reason is because this guy is corrupt and he's not serious about investigating corruption in his country, if there was a legitimate basis for that, then I don't see anything wrong with Biden doing that. And if there was a legitimate basis to undertake an inquiry about Ukrainian interference in the 2016 election, and a legitimate basis to at least undertake an investigation about corruption in that country involving Burisma, and possibly the Bidens, and I think the factual predicate was there to at least initiate those investigations, I think it's perfectly okay.
Prof. John Yoo: Yeah, it's interesting. The House Democrats have dropped "quid pro quo" because they realize it didn't really make much sense and wasn't carrying any weight with the public. As you say, the quid pro quo is so general as to be useless because, as you say, foreign policy, if we're doing it right, everything we're doing in foreign policy, should ware down to some kind of benefit to the United States. If we're doing something purely altruistic, we're not actually acting, necessarily, in our national interest, then. So you could characterize this in most things we do in foreign policies involving some kind of exchange of benefits.
So that, itself, can't be impeachable. The only thing that could be impeachable is if you could show that what the President was doing was not actually for any national benefit but was purely only for his own personal benefit. I think this is -- I think John and I, both, pointed out, this problem is that a lot of things that Presidents do that benefit themselves, also benefit the country. Presidents are going to be egomaniacs. They're going to, often, think that things that benefit themselves are good for the country, too. You get taught with lots of examples that can be raising of people, raising things about FDR, and LBJ, and Kennedy all doing things which they thought were in their interests, but also in the national interests.
And so, the thing that is really difficult about this quid pro quo thing, I think the reason the Democrats dropped it is because they have to show that when Trump was asking for this favor, this wasn't just some kind of rambling way for Trump to ask about corruption because this Biden thing was just stuck in his mind as the leading example. You could see when he talks in public, but also on this phone call, a lot of the things he says are sort of rambling and imprecise. And I think that's the difficulty the Democrats have is showing, no this is really only about helping Trump, himself, and not helping the country.
I want to sort of modify something that John Malcolm might have said, which is, yes Congress appropriates funds and the President has to distribute them, but there's also this, I believe, this practical understanding that we will delay money in foreign aid to corrupt governments. So if Congress, say, allocated money to go to some third-world country where there's this utterly corrupt dictator, and suppose we knew that that dictator would just take that money and put it right into his pocket. Not even use it for that country's benefit at all. Just turned around and put it in his Swiss Bank, I'm sure this has happened. I don’t think anyone would complain if the President said, "No, I'm going to delay and hold the transfer of that money until we're persuaded it actually gets to the country, and the dictator's just not putting it in his pocket.” And I think that's the best defense I think what Trump did here, was that's really -- this was his short-hand imprecise rambling way of talking about, "what I'm really getting at is corruption, not the Bidens, for my reelection."
Wesley Hodges: Here is our next question.
Caller 5: Good morning. I'll try to speak fast. I'm just wondering if you have views as to the relevance of the Supreme Court in the impeachment process. The hypothetical would be if the House impeached and they used that bribery statute that John referred to—the federal bribery statute involving the issue of Marbury v. Madison—and then the Senate convicted, understanding that the Chief Justice would have presided over that, do you think the Supreme Court would have any place in the proceedings, at that point?
John Malcolm: No. So the Supreme Court considered a case in 1973, it was U.S. v. Nixon, but it was a federal judge named Walter Nixon and he had actually -- the trial took place before one of the committees of the Senate, who then wrote a report and submitted it to the full Senate and they voted to remove him. He said, “No, that that was an improper process,” and in a unanimous opinion, written by Chief Justice Rehnquist, they said that the House has the sole power to impeach and the Senate has the sole power to try impeachments. And even the Chief Justice, who will be presiding over the trial, any ruling that he makes, the Senate, by a majority vote, can overrule. So I think the answer to that is no. John, do you have a different view?
Prof. John Yoo: No, in fact, if you look at that opinion -- it was '93, by the way, not '73. But John's right in that whenever Nixon appeared in the Supreme Court, he lost. Whichever Nixon it is. It's interesting. One example they give is exactly this example because they said, two things they worried about. One was, it would be weird for a member of the judiciary to be impeached, and then the judiciary being able to review that. So we wouldn't want that, it would be kind of like a self-dealing.
But it was interesting, I think they mentioned, it would be really difficult to allow judicial review when there's a President being impeached because, since the Chief Justice is a trial judge, and the Chief Justice is the Chief Justice of the Supreme Court, you'd be asking to review the impeachment, you would have a case where the Supreme Court would be reviewing the Chief Justice's own decisions on appellate review. So the Court said, that is so improper and illogical that that's another reason why we won't allow judicial review of an impeachment.
It's interesting this Nixon case did sort of foresee this possibility. Now, at the time they decided it, it was Chief Justice Rehnquist who wrote the Nixon case. The Clinton impeachment hadn't happened. No one thought there would be a presidential impeachment again in our lifetimes. Now we've had, we're going to have had two.
One last thing is, a lot of, I think a lot of outstanding questions about what the Chief Justice can and can't do during the Senate trial. And the past rules have essentially treated the Senators like jurors. What's going to happen, say, if Ted Cruz get's up and says, "I want to move to change all the Senate rules for impeachment so we could have a real trial and have the witnesses show up in the well of the Senate. And let's ask them questions and cross examine them." That would be really interesting to see what Chief Justice Roberts is going to say. I expect a Republican Senator will make such a motion. Otherwise, I can't imagine Ted Cruz and Mike Lee sitting there silently at their desks and not speaking for weeks.
John Malcolm: They did have, at the Clinton trial, snippets of the videotaped deposition --
Prof. John Yoo: Just played, yeah, played to them.
John Malcolm: So they can have live witnesses, they just haven’t. So we'll see. Maybe Hunter Biden and Adam Schiff will be in the well of the Senate testifying, we'll see.
Prof. John Yoo: Well, my great hope is that Trump will show up and represent himself and give his own closing arguments. And speak at great length, and none of the Senators will be able to answer back, under the rules.
John Malcolm: That would be quite the ratings bonanza.
Wesley Hodges: That would be astounding. Well, Caller, thank you so much for your question. John Yoo, John Malcolm, again, looking at the time, I do want to see if you have any closing remarks before we wrap up today. John Malcolm, do you have anything to say?
John Malcolm: No, I'm sure something's going to happen in the near future and John, and I will be back. So whatever it is I would say, I'll save for then.
Prof. John Yoo: Yeah, see you on the day of the House vote. We'll pick a date now and I'm sure it'll fall on that date, just by chance.
Wesley Hodges: Well, John Yoo, John Malcolm, on behalf of The Federalist Society, thank you again so much for the benefit of your time and expertise today. We welcome all listener feedback by email at email@example.com. Thank you all for calling in and asking all of these great questions. We are now adjourned.
Operator: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.